' MIAN ABDUL KHALIQ, J.---Muhammad Rafique alias Feeqi aged 35 years and Muhammad Nawaz alias Nazu aged 25 years were tried by the learned Sessions Judge, Bahawalnagar for the murder of deceased Muhammad Yar, who vide his impugned judgment dated 24-10-1992 convicted and sentenced, Muhammad Rafique alias Feeqi under section 302, P.P.C. To death and a fine of Rs,30,000 in default whereof to suffer one year R.I. He was also directed to pay compensation of Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. The compensation was to be recovered as arrears of land revenue, and if not paid or recovered, the appellant was directed to further suffer 6 months R.I. Co-accused Muhammad Nawaz alias Nazu was acquitted of the charge. To assail his conviction and sentence the appellant has filed this appeal. The learned Sessions Judge has sent reference under section 374, Cr.P.C. Both appeal and the reference shall be disposed of by this judgment. Criminal Appeal No,90-J/92/BWP filed through Jail has become infructuous and is disposed of.
2. The case of the prosecution as unfolded in the F.I.R. Exh.PA recorded by P.W.11 Rashid Ahmad on the statement of P.W.1 Akbar Khan at Police Station Sadar Chishtian on 27-2-1991 is to the effect that he was resident of Mauza Qabool Fatani and on the day of occurrence (27-2-1991) at about 10-30 a.m. He alongwith his deceased nephew Yar Muhammad resident of the same village reached their lands, the deceased went to take water to the house of P.W.2 Ghulam Qadir Khan and the complainant remained present in his land. Meanwhile the appellant armed with 7mm rifle alongwith his acquitted co-accused Muhammad Nawaz alias Nazu (empty handed) also arrived there and proceeded towards the house of Ghulam Qadir. Muhammad Rafique Bala also entered the house of P.W.2 Ghulam Qadir. Co-accused Muhammad Nawaz stood at the door of P.W.2 Ghulam Qadir. Muhammad Rafique appellant abused deceased Yar Muhammad, who replied in the same coins. Meanwhile due to commotion P.W. Muhammad Ashraf (given up) and P.W.6 Gogey Khan who were present nearby in their land, reached and P.W.2 Ghulam Qadir was present at his house. They all advised Muhammad Rafiq appellant to restrain, but he became more furious and fired with his rifle, which hit Yar Muhammad deceased at his left flank. The P.Ws. Tried to apprehend the appellant, but he threatened them of dire consequences and succeeded in running away. The motive was that a few days earlier Yar Muhammad deceased had checked the accused from coming to his Dera and on that they had exchanged abuses. Yar Muhammad became unconscious and was carried by a tractor-trolly to the police station, where F.I.R. Exh.PA was registered.
3. P.W.11 Rashid Ahmad, A.S.I. After recording the F.I.R. Exh.PA prepared injury statement Exh.PJ of Yar Muhammad and sent him to the Hospital. He made an application Exh. PH/4 to the Medical Officer on 27-2-1991 for his opinion whether injured was fit to make statement and the Doctor opined that he was not fit for statement (Exh.PH/3). He recorded the statements of P.Ws., reached the spot, secured blood-stained earth vide memo. Exh.PB and crime empty of 7mm rifle vide memo Exh.PC.
On 28-2-1991 he arrested the appellant and from his possession secured 7mm rifle P1 which contained a bullet P2 vide memo Exh.PE and prepared the sealed parcels. On 6-3-1991 he recorded the statement of injured Yar Muhammad, who later on died in the Hospital on 18-3-1991 and section 302, P.P.C. Was applied. He prepared inquest report Exh.PK and dispatched the dead body to the mortuary for autopsy. After completion of the investigation he handed over the case file to the S.H.O. Who submitted the challan.
4. The accused were sent up for trial and a charge under section 302/34, P.P.C. Was framed, to which they denied and claimed trial.
5. The prosecution examined 11 P.Ws. In all to substantiate its case. P.W9 Dr. Farooq Mustafa on 27- 2-1991 medically examined injured Yar Muhammad and thereafter operated upon him. Exh.PG is the correct copy of the operation notes. The injured died on 18-3-1991 at 1-45 p.m. P.W.10 Dr. Mahmoodul Hassan on 27-2-1991 at 1-30 p.m. Had also medically examined Yar Muhammad in injured condition and had found the following injuries on his person:-
(1) A lacerated wound of rounded in shape 1 c.m. In diameter. A probe 4 c.m. Could be pushed.
Margins were inverted. Burning and tattooing signs were present around the injury situated at mid line of back slightly 1-1/2 c.m. Right side to the vertebral-column it was oblique in direction. It was wound of entry. Bleeding was coming out of the wound and was vertically situated in the mid zone.
(2) A lacerated wound situated at the left side of front of chest on anterior axillary line. It was 7 c.m.
Below and at level to left nipple 3 c.m. x 2 c.m. Margins were exerted. This was wound of exit.
Bleeding was coming out of the wound.
' The general condition of the patient was serious. Exh.PH is the correct carbon copy of the M.L.R.
Exh.PH/1 is Diagram showing the location of injuries. Exh.PH/2 is the report by which injury No,2 was also declared as grievous. Exh.PH/3 is the report in a query made by the police as to whether the injured was fit for giving any statement. On 19-3-1991 at 7-00 a.m. He conducted autopsy on the dead body of the deceased and found the following injuries on his person:---
(1) An entry wound on the back of vertebral column in the middle zone from neck to hip (As mentioned in the MLR). The wound was very dirty and was oval in shape and was of size of 7 c.m. x 5 c.m. It was slightly on the right side of the back.
(2) A wound of exit corresponding to MLR 6 c.m. x 3 c.m. On the left side of the chest.
(3) A chest tube wound 5 c.m. x 4 c.m. On the chest of right side for drainage of blood and pus during the injury treatment. It was a surgical wound, made during the treatment. And had opined that injury No,1 caused severe visceral damages (lever, stomach, spleen, diaphragm and left pleura). This injury was grievous and dangerous to life in its nature. Injury No,2 was the exit wound of injury No,1, Injury No,3 was surgical wound made for treatment. The cause of death was cardiorespiratory failure due to damage done by injury No,1. The probable time between injuries and death was about 20 days and between death and post-mortem examination was about 17 hours. Exh.PI is the correct carbon copy of the post-mortem examination report.
6. P.W.1 Akbar Khan, P.W.2 Ghulam Qadir and P.W.6 Gogey Khan stated the ocular account of the occurrence as well as about the motive. P.W.6 Gogey Khan and P.W.11 Rashid Ahmad, A.S.I. Had proved the factum of recovery of rifle P.1 from the appellant. P.W.3 Muhammad Ali and P.W.11 Rashid Ahmad, A.S.I. Also stated about the taking into possession of bloodstained earth and empty P.3 from the spot. Report of the Chemical Examiner and that of the Serologist Exhs.PN and PQ as well as that of the Technical Services Exh.PO pertaining to rifle P.1 and empty P.3 are positive. The other P.Ws. Are of formal nature.
7. The appellant when examined under section 342, Cr.P.C. Denied the prosecution evidence against him. He also refuted the recovery of crime rifle P.1 along with a bullet P.2. He also stated that the P.Ws. Deposed against him on the ground of party faction and that he was innocent. He made statement on oath under section 340(2), Cr.P.C. And stated that he had no dispute with the deceased on money or on any other matter. He never went to the Bheini of the deceased for settling any dispute. The P.Ws. Did not belong to the place of occurrence. The deceased used to visit the house of P.W.2 Ghulam Qadir on account of having illicit relations with his grand-daughter Mst. Zikran and the present case was registered against him at the instance of Ghulam Qadir. P.W.2 Ghulam Qadir is the head of his family. The police arrested him from his house on the day of occurrence and no rifle was recovered from him. He did not produce any evidence in defence.
8. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellant.
9. We have heard the learned counsel for the appellant; the learned State counsel assisted by the learned counsel for the complainant and has perused the record. It was vehemently contended by the learned counsel for the appellant that the case against the appellant was false and motive was not proved. He was not present at the spot and the deceased was done to death by a son of Ghulam Qadir (P.W.2) with whose grand-daughter the deceased had illicit liaison. The police had not recorded the statement of the deceased, although he was conscious. The eye-witnesses were interested and the recovery has been planted.
10. P.W.1 Akbar Khan complainant in the F.I.R. Exh.PA stated about motive behind the occurrence that the deceased, a few days earlier to the present incident had checked the accused from coming to his Dera and on that they had exchanged abuses. P.W.6 Gogey Khan stated that a theft of Yar Muhammad deceased was committed of the amount of Rs,11,000 from his Dera, and the money belonged to one Phujju, a tobacco dealer. The accused were suspected of that theft and the deceased had asked them to refund the money and also not to come to their Dera in future.
Therefore, the deceased was murdered. P.W.2 Ghulam Qadir stated during cross-examination that the deceased was a tobacco dealer and at his Dera had come tobacco merchants whose theft of about Rs,11,000/12,000 took place 4/5 days earlier to this occurrence from his Dera. P.W.1 Akbar Khan stated the motive behind the incident that the deceased had asked the accused not to visit his Dera, on which they had abused each other. P.W.2 Ghulam Qadir had not stated about the motive in the examination-in-chief, but was asked by the defence counsel in cross-examination. P.W.6 Gogey Khan stated about the motive in his examination-in-chief. We hold that the motive behind the occurrence stands proved on record by the statements of P.Ws. 1, 2 and 6. The ocular account has been furnished on record by the statements of P.Ws.1, 2 and 6 who unanimously stated that the appellant fired with a rifle on the deceased which had hit on his right flank. No doubt the deceased was nephew of P.W.1 Akbar Khan and brother of the wife of P.W.6 Gogey Khan, but P.W.2 Ghulam Qadir is not related either to the deceased or the appellant. The P.Ws. Had no motive whatsoever to falsely involve the appellant in the present case. The statements of P.Ws. 1 and 6 cannot be thrown away or brushed aside on account of their relationship with the deceased. They made their statements in a straightforward manner and implicit reliance can be placed upon their testimony.
11. The medical evidence stated by P.W.10 Dr. Mahmoodul Hassan is in consonance with the ocular account furnished on record by the statements of I C P.Ws. 1, 2 and 3.
12. The recovery of rifle P.1 at the instance of the appellant stands proved. The report of the Technical Services Exh.PO pertaining to rifle P.1 and an empty P.3 is positive and nothing was brought on record by the defence to D shatter the statements of P.Ws.3 and 11. The learned counsel for the appellant also vehemently contended that the deceased was conscious and able to make statement when he arrived in the Hospital as stated by P.W.9 Dr. Farooq Mustafa, but no query was made by the Investigating Officer for recording the statement of the deceased. P.W.11 Rashid Ahmad, A.S.I. Made an application Exh.PH/4 and made query about the condition of the deceased that either he was fit to make statement and the Doctor had opined on 27-2-1991 that he was not fit and thereafter on 6-3-1991 P.W.11 went to the B.V. Hospital, Bahawalpur and recorded statement of the injured Exh.DC. It is pertinent to mention here that the statement of Yar Muhammad deceased was not exhibited by the prosecution, but the same was brought on record by the defence as Exh.DC wherein he specifically named the appellant as assailant, who had caused injury on his left flank with the rifle.
13. Taking into consideration the above discussion and perusal of the record, we are of the view that the appellant was rightly convicted and sentenced and no exception can be taken to the impugned judgment. The appeal filed by the appellant fails and the conviction and sentence passed by the trial Court is maintained. The death sentence is confirmed.